10 years later, Pa.’s open records law has improved access, but some say the law has its flaws

Whether they realize it or not, Pennsylvanians have experienced a new age of transparency and openness of their government over the past decade.

Under the overhauled state’s Right to Know Law that took effect on Jan. 1, 2009, access to millions of documents have been granted that shed light on activities of local and state government that previously were shielded from public view.

A decade since the passage of the open records law, government watchdogs say it has helped shed more light on state government. But some acknowledged there is still plenty of room for more transparency in both state and local government.

“Without access to government information, there is no ability to hold government officials accountable,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association. “It really is a fundamental building block for of the way our democracy functions.”

Her association was one of the leading advocates for rewriting the state’s open records law. Before the law changed, records were presumed to be closed. Now, government documents are presumed to be open to the public, unless they are among the records that the law exempts from disclosure.

“We are just leaps and bounds ahead of where we were 10 years ago,” said Erik Arneson, executive director of the Pennsylvania’s Office of Open Records.

But the transition hasn’t been easy.

There’s been court battles, more than some ever imagined. And there continues to be resistance.

“Pennsylvania was coming from, and in many places it still exists in, a culture of secrecy,” Melewsky said. “That’s not going to go away quickly or easily.”

But overall, municipal and access advocates alike seem to agree the change was necessary and the law – minus some tweaks being sought to address what some see as unintended consequences – struck the right balance.

Starting Sunday, news organizations will observe “Sunshine Week,” which is designed to highlight the importance of the public’s right to know about their government. So it seems appropriate to look back to see how Pennsylvania’s open records law has been working and what reforms may be in the works.

Under the prior version of the Right to Know law, the public was very limited in what records it could obtain. Access to such things as training records of police officers, internal policies, and labor contracts were off limits.

Now, the public can get that information and more.

“The law expanded access by expanding the definition of ‘record’ and ‘public record’ to reach virtually all information an agency creates, retains or receives in connection with its function, and for the first time, the law also reached the Legislature and courts,” Melewsky said.

“We are just leaps and bounds ahead of where we were 10 years ago,” said Erik Arneson, executive director of the Pennsylvania’s Office of Open Records.

Another reason that Pennsylvania gets high marks by government access advocates is its requester friendly appeals process, Arneson said.

If a government denies a record request, a citizen can appeal that decision for free and without an attorney to the state’s Office of Open Records. The office’s decisions are binding but can be appealed to court. In many other states, he said their open records offices issue only advisory opinions.

As a reminder of life under the old law, the only recourse the public had if a record was denied was going to court.

“There can be no question Pennsylvania is far, far more transparent than it was,” Arneson said. “Now can we be better? Yes. I got no issue saying that. There are certainly weaknesses in the law but it is dramatically better than where we were 10 years ago.”

From secrecy to sunshine

Melewsky still deals with journalists who struggle with gaining access to records as simple as meeting minutes and meeting agendas. Another sign that the adjustment to the law hasn’t gone smoothly is the number of open records cases that have made their way into the courts.

Craig Staudenmaier, a Harrisburg attorney with extensive experience in open record cases, says that is his biggest disappointment with the Right to Know law rewrite.

“We thought it would eliminate a lot of the litigation but it only seems to have spawned more because of agencies resistance to turn over records more readily,” he said. “That’s a shame. A process that was supposed to be streamlined to maybe 30 to 60 to 90 days can stretch out years with court appeals and more appeals.”

Melewsky attributes that to the broadly worded and amorphous concepts in the law that some agencies choose to interpret to the extreme while access advocates take it to the other end of the spectrum, leaving the courts to mediate the tension.

PennLive, for one, is engaged in several records battles with the state Department of Health. One case is seeking to release the names of the panelists who reviewed the medical marijuana applications. Another asks to remove redactions the department made to the medical marijuana permit applications. On another front, PennLive is seeking lease agreements for nursing homes from the health department to learn more about issues that could affect quality of care.

Terry Mutchler, the former and founding director of the state’s Office of Open Records, confessed had she known the headwinds she would encounter in implementing the new law, she might have thought twice about accepting the job when former Gov. Ed Rendell offered it to her in 2008.

“I never anticipated the ferocious reaction that we received in trying to change the landscape of openness in the commonwealth,” she said.

“I never anticipated the ferocious reaction that we received in trying to change the landscape of openness in the commonwealth,” said Terry Mutchler, founding and former executive director of Pennsylvania's Office of Open Records.

It has required some adjustments. Melewsky of the newsmedia association shared some journalists find the overhauled Right to Know Law can place roadblocks on obtaining information that government agencies formerly handed out upon request. Now, they must submit a Right to Know request to obtain it.

“Agencies feel sometimes there must be a formal written record of every request that comes in and is responded to and that’s simply not required by law," she said. “That’s a mistake. It makes more work for everyone involved including the agency and it takes more resources and it takes more time when it’s necessary especially when you are dealing with records that are clearly public.”

That’s not the case with all government agencies. In fact, some have chosen to post meeting agendas, meeting minutes, development plans, bid results, budgets, and other financial records on their websites in this new age of transparency.

Rick Schuettler, executive director of the Pennsylvania Municipal League, said local officials have taken to heart the culture change imposed on them by the revised open records law. It’s evident not only in the information they are posting on websites but also in the keen interest newly elected officials have shown in learning about the law.

“I’ve seen that change over the years,” he said. “There really is an elevated level of interest in Right to Know issues.”

Interpreting the law

While more than 90 percent of the appeals of record request denials are handled by the Office of Open Records, several hundred have made their way into the Pennsylvania court system over the past decade. Some of those court cases have been more consequential than others, such as:

Allowing access to third-party contracts and related records: The courts ruled that records of private entities that contract with a governmental agency to perform “non-ancillary” governmental functions are reachable under the RTKL. The contract and records that “directly relate” to it are public records.

Police dash cam videos: A Supreme Court ruling granted access to state police dash camera video footage, allowing non-public information it contained to be redacted. But shortly thereafter, the Legislature passed a law signed by Gov. Tom Wolf that removes them from Right to Know Law and in practice, make public access to the videos unlikely unless law enforcement agrees to release.

Despite the court decisions that have further limited the public’s access to records under the revised Right to Know law, Melewsky of the newsmedia association remains convinced, “There is no question Pennsylvanians are better off today than they were 10 years ago.”

Changes being sought

Considering that the law applies to some 6,000-odd local and state government agencies, not everyone is happy with this effort to make government more transparent.

Arneson, the director of the Office of Open Records, says he still encounters some government officials, who even after 10 years of living with this law, “believe the best amount of sunshine is akin to what you find at 2 a.m.”

Aside from those officials, there are some changes in the transparency laws that some seek to address concerns that have arisen since the law took effect.

Access advocates would like to see time limits placed on how long criminal and non-criminal investigative records can be kept private after they are closed; basic police incident reports be made public as they were under the old law; governmental agencies be required to disclose the reason behind firings or demotions of public employees; and more disclosure requirements placed on Penn State, Pitt, Temple and Lincoln universities, to name a few items on their wishlist.

Governmental agency advocates, too, are looking for relief from what Pennsylvania State Association of Boroughs spokeswoman Leslie Suhr called “unintended consequences of the law that have proven to be unfunded mandates on local governments.”

Specifically, the one gripe cited most often by organizations representing municipal groups involve the commercial requesters. These outfits submit requests seeking voluminous amounts of records, such as a dog groomer asking to see all of the dog license applications or data mining companies seeking information on tax parcel identification numbers, to help them market their service.

According to a 2018 Legislative Budget and Finance Committee report on the cost of implementing the Right to Know Law, its survey of 1,100 state and local open records officers found more than a third of all requests they received have a commercial purpose. Nearly half of those requests came from an outfit outside of Pennsylvania.

“When taxpayers resources have to be spent to do marketing research for out-of-state commercial requests, there ought to be modifications" in the fee that a government agency can charge to respond to those requests, said David Sanko, executive director of the Pennsylvania State Association of Township Supervisors. “If people are going to use it to make money, the taxpayers shouldn’t be subsidizing that for them.”

His group as well as others representing local governments are asking for the law to be changed to allow them to impose a reasonable fee on commercial requesters. They also seek recourse when it comes to dealing with burdensome or “vexatious” requesters who make frequent requests for hundreds of records at a time. Among other revisions they seek, they also would like to see clarification stating that bank account numbers and passwords are private.

Sen. John Blake, D-Lackawanna County, is trying for the fourth consecutive legislative session to get a bill to the governor's desk to reform the 10-year-old Right to Know Law.

Sen. John Blake, D-Lackawanna County, plans to offer legislation to tweak the Right-to-Know law as he has the past three legislative sessions to address some of the concerns that access advocates and governmental agencies raised. Blake noted earlier versions of the legislation passed the Senate unanimously in three consecutive legislative sessions only to hit a brick wall in the House of Representatives.

This session, he is feeling hopeful this reform bill will reach the governor’s desk. He is finding some Republican allies in that GOP-controlled chamber and possibly one willing to sponsor a companion bill to his in the House.

“If that can happen,” he said. “I believe we can get it done in this session.”

If those changes can get made without lawmakers’ succumbing to pressures to weaken the bill, Mutchler said Pennsylvania will continue to have an open records law it can be proud of.

Still, that doesn’t mean access advocates can take their eye off the ball.

“Transparency needs to be tended,” Mutchler said. “If you don’t tend transparency every day – and I mean every day – it’s like weight loss. It’s like your garden. As soon as those pounds come on, as soon as those weeds come up, it’s over.”